Grieving ex-wife’s legal shock

A VICTORIAN woman made a legal claim for her former husband's property while he was still alive. By the time it was received, he was dead.

The bizarre situation unfolded in the Family Court in Victoria in November. The couple, who cannot be identified, had been married since 2003 but separated in 2015.

Since their separation, they had wisely tried to broker an outcome that suited both parties on the division of their rural property.

But tragedy struck late last year, before they could reach an agreement - the woman's ex-husband was injured in a workplace accident. His former wife was told he may not survive, so she did what she thought was the right thing. It almost cost her dearly.

"What happened here was the wife gets news her former husband has had an accident and is hospitalised and it's serious," family law specialist Caroline Counsel told

"She contacts her lawyers, who go into overdrive to ensure her rights are kept alive if he should die."

The woman filed documents with the Family Court electronically around 7.40pm. Less than four hours later, her ex-husband's life support was switched off and he was declared dead.

Under court rules, anything filed after 4.30pm is deemed to have been filed the following day, meaning a judge could have tossed her case out and left her to fight with other family members in the Supreme Court.

Her legal rights to claim property in the Family Court would have died with him - and she would have a far better chance of securing more in that court than in the Supreme Court, where an unknown number of beneficiaries might have tried to downplay the pair's relationship.

Luckily for her, in his statement to the court, Justice Paul Cronin said he refused to "stand in the way of justice".

He added: "On the basis that the rules of court cannot be an instrument of injustice, and no new or unforeseen right is being created by the exercise of discretion in treating the application as having been filed at the moment it was electronically registered (as distinct from the deemed time), the court has received an application filed properly within the jurisdiction."

Ms Counsel said Justice Cronin's pragmatic approach was the difference between a sensible outcome and the situation being dragged through the courts.

"She would've been fighting other beneficiaries (even though) she wasn't lazy or neglectful. The couple had been negotiating right up until his accident," she said.

Ms Counsel said it was both refreshing and reassuring that the judge had refused to apply a blanket rule to a situation that was typically "messy" but something she'd never seen before.

"Family law is the most challenging but in some ways the most rigorous form of judging," she said.

"You're dealing with humans and humans lead messy and complicated lives."

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